Citation Nr: 22018563 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 09-01 743 DATE: March 29, 2022 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT The Veteran's service-connected disabilities have resulted in the inability to obtain and maintain substantially gainful employment consistent with his education and occupational experience. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.103, 3.340, 3.341(a), 4.16, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1974 to September 1976. This matter comes before the Board of Veterans Appeals (Board) from an October 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The appeal was remanded in June 2021 for additional development. It has since been returned to the Board for further appellate consideration. There has been compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Pursuant to the December 2020 Board remand, in a December 2020 and a February 2021 correspondence, the RO requested that the Veteran complete and submit a VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability. The RO did not receive a completed VA Form 21-8940 from the Veteran. The Board notes that in the November 2020 Appellate Brief the Veteran's representative wrote that he has a custodian, and his custodian may not understand the importance of completing and returning the VA 21-8940. As such, the Board will adjudicate the claim based on the evidence currently of record. 1. Entitlement to a TDIU Applicable Law VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU is granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 38 C.F.R. § 4.16(a). If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran's background including his employment and educational history. 38 C.F.R. §§ 3.321(b), 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, the issue must be referred to the Director of Compensation Service for such assessment in the first instance. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). Thereafter, the Board has jurisdiction to review the entirety of the Director's decision denying or granting an extraschedular rating and is authorized to assign an extraschedular rating when appropriate. Kuppamala, 27 Vet. App. at 457. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd, 27 Vet. App. at 85-86. Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran's master's degree in education and his part-time work as a tutor). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. Discussion The Veteran contends that his is unable to work due his service-connected disabilities. See February 2022 Appellate Brief. For the period on appeal, the Veteran's service-connected disabilities did not meet the schedular criteria for TDIU under 38 C.F.R. § 4.16(a). The Veteran is service-connected for degenerative disc disease, rated at 20 percent; right lower extremity radiculopathy, rated at 20 percent; and left lower extremity radiculopathy, rated at 20 percent. From March 2007 his combined disability evaluation is 50 percent. The question before the Board is whether the criteria for an extraschedular TDIU are met. The Board referred the matter to the Director of Compensation Service in June 2021. In a November 2021 memorandum, the Director determined "the overall evidence fails to support the contention that the Veteran's service-connected conditions preclude employment." The Director noted the decision was based on a consideration of all relevant evidence; including, but not limited to the Veteran's education, training and work history. The Board will proceed to address the merits of the claim. Of record are November 1984 skills center documents that show the Veteran went to two different schools for business administration, but it appears he did not complete either program. The Veteran was found to be highly qualified for building maintenance repairer, electrician helper, cement mason helper, bricklayer helper, plumber maintenance helper, and gas appliance servicer. There were no scores pertaining to sedentary employment. Social Security Administration (SSA) documents show that the Veteran previously worked as a construction worker in 1988 and a laborer from 1989 to 1990 hauling trash. He stated that his job duties included writing reports or completing forms and that he was a self-contractor supervising other people about half the time. The Veteran also stated that he took a course in building maintenance and that his highest education level was 1 year in college. In May 2007, the Veteran reported that he worked as a security guard, laborer, construction laborer, and general contractor. Also, the Veteran was found to have the residual functional capacity to perform a full range of sedentary work. In a November 2009 decision, the Social Security Administration found that the Veteran was disabled for SSA purposes as of March 2007. In an income statement submitted in February 2008, the Veteran reported working for a packaging company making boxes for a year in 1986. In a September 2008 Aid and Attendance Housebound examination the nurse opined the Veteran is "unemployable for physical or sedentary labor due to the condition of the lumbar spine." In a February 2018 VA examination, the examiner opined the Veteran's service-connected disabilities impact his ability to perform physical activities of employment that include "back pain, stiffness, limited range of motion, difficulty with heavy lifting, bending, prolong walking or climbing stairs and lower legs pain, tingling, numbness, difficulty with prolong walking." There was no effect on sedentary work. (Continued on the next page) In a December 2019 VA examination, the examiner opined that the Veteran's service-connected low back pain and radiculopathy "make it not possible for him to do work which requires standing, walking, or lifting" but there is no impact on sedentary work. The Board finds that the Veteran has been unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. Moreover, the evidence demonstrates the Veteran has no history of obtaining and maintaining gainful sedentary employment since 2007. In light of the evidence of the severity and functional limitations of the Veteran's service-connected degenerative disc disease of the lumbar spine and bilateral lower extremity radiculopathy, his individual work experience and training, and with the resolution of all reasonable doubt in his favor, the Board finds that the evidence shows that a TDIU rating is warranted. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Braxton, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.